Opinion
Cause No. 1:01-CV-347
July 12, 2002
MEMORANDUM OF DECISION AND ORDER
On September 21, 2001, pro se plaintiff Dennis L. Hollowell ("Hollowell") filed a complaint against his former employer, International Mill Service, Inc. ("IMS"). Hollowell alleged that IMS had discriminated against him because of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 626(b) and (c), and had breached its duties to him under a Collective Bargaining Agreement ("CBA") between IMS and Hollowell's union, the International Union of Operating Engineers Local 103 ("IUOE"). On January 24, 2002, this Court permitted Hollowell to amend his complaint to add a claim that IMS retaliated against Hollowell for filing an EEOC Charge of Discrimination.
IMS moved for summary judgment on May 24, 2002. Hollowell responded on June 26, 2002. IMS filed its reply in support of its pending motion on July 3, 2002. For the following reasons, IMS's motion for summary judgment will be GRANTED.
FACTUAL BACKGROUND I. Hollowell's Employment at IMS
IMS employed Hollowell as a heavy equipment operator from July 1997 through December 18, 2000. Hollowell learned that IMS had a job opening through an advertisement in the local newspaper. In response to the advertisement, Hollowell submitted his resume and the IMS Foreman, Jeff Studebaker ("Studebaker"), hired him immediately. Hollowell was forty-five years old at the time Studebaker hired him.
Although Hollowell worked for IMS, the work he performed took place on the property of another company, Slater Steels Corporation. IMS had a contract with Slater Steels to perform slag metal removal and assigned four of IMS's employees and a foreman, Studebaker, to work at Slater Steels. Hollowell's primary duties were to use a payloader to haul giant pots of steel and slag that had been filled by employees of Slater Steels, empty the pot, and then use a backhoe to separate the steel pieces from the slag. Throughout his employment at IMS, Hollowell worked the third shift, from 11:00 p.m. to 7:00 a.m., Monday through Friday. Hollowell was the only IMS employee who worked the third shift at the Slater Steels plant.
Although Hollowell performed his duties adequately, as his employment progressed, IMS noticed that Hollowell often had conflicts with his fellow employees. At first, Plaintiff's inability to get along with the second shift operator was dismissed as a personality conflict. However, shortly after a new second shift operator was hired, the same complaints were heard. Hollowell's co-workers complained about Hollowell's negative attitude and confrontational nature and stated that Hollowell seemed to keep them around after their shift was over simply so he would have someone to complain to.
Additionally, IMS states that Hollowell was frequently late to work beginning in 2000. IMS acknowledges that Hollowell always had an excuse for his tardiness, but it seemed he was constantly appearing for work just as his shift was starting. Studebaker spoke to Hollowell about his tardiness on several occasions. Each time, Hollowell argued with Studebaker as to why Hollowell was unable to report to work on time. Thus, toward the end of Hollowell's employment, Studebaker viewed Hollowell as the employee with the worst attitude, who caused the most problems, and who accomplished the least.
On October 31, 2000, Slater Steels informed IMS of its intention to cancel their contractual agreement because Slater Steels was planning to cease melting operations at the Fort Wayne, Indiana facility in 2001. Slater Steels informed IMS that it was planning to phase out the melting operations one shift at a time, beginning November 13, 2000. Slater Steels shut down the second shift in November as planned, then shut down its third shift on December 18, 2000. When Slater Steels shut down its third shift, IMS phased out its third shift as well. As the only IMS employee on the third shift, this decision necessarily affected Hollowell. Even though Plaintiff's shift had been eliminated, on December 15, 2000, Studebaker instructed Plaintiff to report for first shift the following Monday, December 18, 2000. Hallowell objected to this directive for child care reasons and requested that he be allowed to work second shift.
At the time Hollowell rejected the transfer to the first shift, Studebaker had been in a quandary whether to offer it to Hollowell in the first place. IMS was aware that its entire operation at Slater Steels was scheduled to conclude in just five months time and Slater Steels' canceling of its second and third shifts had drastically reduced Plaintiff's workload. Although he was inclined to lay off Hollowell when the third shift was phased out, Studebaker decided to offer him some short-term first shift work.
When Hollowell declined the first shift position, Studebaker decided to lay Hollowell off immediately. In management's opinion, the other two heavy equipment operators were much better qualified to perform the job and the apprentice, who earned a lesser wage, was considered as good or better a worker than Hollowell. In IMS's opinion, Plaintiff was the least productive and most troublesome of its employees. Hollowell was informed of the decision to lay him off on Sunday, December 17, 2000.
On December 20, 2000, Hollowell and Studebaker met with Rick Houdyshell, Plaintiff's job foreman, and Randy Hopkins ("Hopkins"), Plaintiff's IUOE Union representative. At the meeting, Hollowell indicated that he would make child care arrangements so he could work the first shift. However, Studebaker refused to re-hire Hollowell.
After the December 20, 2000 meeting, Hopkins advised Plaintiff not to file a grievance. Hopkins told Plaintiff that the work environment was a "hostile" situation and that he felt Studebaker would do anything in his power to run Hollowell off the job site and try to "mess up" Hollowell's unemployment benefits. Plaintiff relied on Hopkins's advice and did not file a grievance.
Plaintiff was laid off by the same man who hired him, Studebaker. Hollowell was forty-eight years old at the time. Hollowell admits no one ever indicated his age was taken into consideration when the decision to terminate his employment was made.
Following his lay-off, Hollowell's duties were absorbed by the remainder of the Slater Steels crew. When the Slater Steels job finished in 2000, the entire IMS crew was laid off.
II. Hollowell's Search for New Employment
After Hollowell was discharged from IMS, he sent job applications to twelve separate companies. When none of these offered Hollowell a position, Hollowell suspected that IMS was giving him negative job references. To investigate the matter, Hollowell asked Donna Turner ("Turner") of Fort Wayne Tax Service to call IMS and inquire about a reference check. Turner did call IMS and requested to speak with Studebaker. Studebaker told Turner that he could not comment on the matter because it was in litigation on an age discrimination lawsuit. In addition, Plaintiff reports that Studebaker told the EEOC investigator assigned to Hollowell's claims, Juan Talamantes ("Talamantes"), that Hollowell was "undependable, unreliable, and needed supervision."
Additionally, Plaintiff has submitted the statement of his wife, Shelly Hollowell, who reports that she spoke with a representative of IUOE, Curt Balsar ("Balsar") in November 2001. Balsar told Shelly Hollowell that John Carroll ("Carroll"), Vice President of Human Resources at IMS, had relayed to Balsar that "Dennis Hollowell is suing us and he is going to sue you [the IOUE Union] too."
Finally, Plaintiff has submitted the statement of Jennifer Stevens ("Stevens"), an Office Manager for Exterior 2000, one of Hollowell's prospective employers. Stevens states that Hollowell presented her with his resume in April 2001. Trying to verify Hollowell's employment, Stevens left several messages with IMS between April 2001 and July 2001 and between October 2001 and February 2002. However, IMS's Human Resources Department has a policy of not responding to telephone messages or unsolicited written inquiries. As a result, Stevens's calls were never returned. Because Stevens was unable to obtain any information regarding Hollowell's employment at IMS, Exterior 2000 would not hire Hollowell.
Defendant correctly points out that Stevens's statement is not properly notarized or subscribed under penalty of perjury. As a result, it is not technically within the range of evidence that this Court can consider. See DeBruyne v. Equitable Life Assurance Soc. of the United States, 920 F.2d 457, 471 (7th Cir. 1990). However, pro se filings are held to less stringent standards than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 521 (1972); Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001). As a result, the Court will consider Stevens's statement.
APPLICABLE STANDARD
"Summary judgment is proper only if `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1031 (7th Cir. 1998) (quoting Fed.R.Civ.P. 56(c)). While the moving party "always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record, if any, which it believes demonstrate the absence of a [genuine issue of] material fact, there is nothing in Rule 56 that requires a moving party to negate an essential element of an opponent's claim for which the opponent will bear the ultimate burden at trial." Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 3178 (1986)). Rather, the standard for granting summary judgment requires the district court to grant summary judgment if the record before us "could not lead a rational trier of fact to find for the non-moving party." McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)).
The burden is therefore on the non-movant to set forth "specific facts showing that there is a genuine issue for trial." Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998) (quoting Fed.R.Civ.P. 56(e)). "In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party." Debs v. Northeastern Illinois Univ., 153 F.3d 390, 394 (7th Cir. 1998). Substantive law determines which facts are "material"; that is, those facts which might affect the outcome of the suit under the governing law. See McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 299 (7th Cir. 1996). Consequently, a dispute over irrelevant or unnecessary facts does not preclude summary judgment. See Hardin v. S.C. Johnson Sons, Inc., 167 F.3d 340, 344 (7th Cir. 1999).
The non-moving party may not rest on the allegations of the pleadings in opposing a motion for summary judgment. See Crim v. Bd. of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 540 (7th Cir. 1998). Rather, the non-moving party must produce some evidence sufficient to show that a genuine issue of material fact exists. "Futhermore, a `party needs more than a scintilla of evidence . . . to defeat summary judgment.'" Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998) (quoting Senner v. Northcentral Technical College, 113 F.3d 750, 757 (7th Cir. 1997)). Thus, a summary judgment determination is essentially an inquiry as to whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.
DISCUSSION I. Age Discrimination Claim
Hollowell first alleges that his termination amounted to discrimination on the basis of his age. To survive summary judgment in a discrimination case, a plaintiff must raise an inference of discrimination through one of two methods. The first method is to put forth enough evidence (whether direct or circumstantial) to raise a genuine issue whether the employer has a discriminatory motivation in carrying out the challenged employment action. See Kariotis v. Navistar International Transp. Corp., 131 F.3d 672, 676 (7th Cir. 1991). The second method is to satisfy the elements of the McDonnell-Douglas burden-shifting analysis. Using that method, a plaintiff must show a prima facie case of discrimination. If she is successful in doing so, the burden shifts to the employer to show a legitimate non-discriminatory purpose for the challenged employment action. The burden then shifts back to the plaintiff to show that the employer's proffered purpose is pretextual. See Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 876 (7th Cir. 1999).
Simpson discusses the McDonnell-Douglas test with respect to claims brought under Title VII. However, because the substantive provisions of the ADEA "were derived in haec verba from Title VII," Lorillard v. Pons, 434 U.S. 575, 584-85 (1978), it is appropriate for this Court to rely on opinions discussing Title VII provisions in this case.
In this case, Hollowell concedes he has no direct or circumstantial evidence that his termination was based on his age. Accordingly, Hollowell must proceed according to the McDonnell-Douglas burden-shifting approach. To establish a prima facie case under that method, Hollowell must show the following four elements: (1) he was a member of a protected class; (2) he was meeting his employer's legitimate performance expectations; (3) he suffered adverse employment action; and (4) IMS treated similarly situated persons not in the protected class more favorably. See Simpson, 196 F.3d at 876. Indeed, IMS concedes that Hollowell can satisfy these four elements and make out a prima facie case.
IMS, however, argues that Hollowell cannot show that its proffered reason for discharging Hollowell is pretext. According to the Seventh Circuit, "[a] plaintiff can prove pretext either by presenting direct evidence that a discriminatory reason motivated the employer's decision or by presenting evidence that the employer's proffered reason is unworthy of credence, thus raising the inference that the real reason is discriminatory." Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1310 (7th Cir. 1997). The question is not whether the employer was mistaken in its judgment, but rather, whether the employer honestly believed its proffered reason for discharge. Id. In this case, IMS states that it believed that Hollowell was the least effective of its three heavy equipment operators. In addition, IMS felt that Plaintiff was the most difficult employee to manage.
Plaintiff has not submitted any evidence that would indicate that IMS did not actually perceive Hollowell to be the weakest employee. Rather, Hollowell merely asserts that he was not the weakest IMS employee. However, a plaintiff cannot raise an issue of material fact based upon his own perceptions of his performance. See Gustovich v. ATT Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992) ("A employee's self-serving statements about his ability . . . are insufficient to contradict an employer's negative assessment of that ability.") Therefore, Hollowell's assertion that IMS's evaluation of his performance is "wrong" is irrelevant; "plaintiffs lose if the Company honestly believed in the non-discriminatory reasons it offered, even if the reasons are foolish or trivial or even baseless." Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 890 (7th Cir. 1997). Plaintiff has tendered nothing to show IMS did not honestly perceive him to be the worst of its heavy equipment operators. As a result, summary judgment on the ADEA claim will be granted.
II. Retaliation Claim
Hollowell also argues that IMS has retaliated against him for filing a Charge of Discrimination with the EEOC. Specifically, Hollowell charges that IMS has given negative references to Hollowell's prospective employers. Absent direct or circumstantial evidence of retaliation, Hollowell must demonstrate a prima facie case of retaliation, that is, that (1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment action; and (3) a causal connection exists between the adverse action and his participation in the protected activity. See Contreras v. Suncast Corp., 237 F.3d 756, 765 (7th Cir. 2001). Here, Hollowell argues that four separate individuals received negative information from IMS personnel regarding Hollowell. However, none of these four incidents can satisfy the requirements for a prima facie case of retaliation.
Hollowell does not purport to put forth any direct or circumstantial evidence of retaliation.
The first three incidents — the phone call from Turner to Studebaker, the conversation between Studebaker and Talamantes, and the conversation between Carroll and Balsar — do not satisfy the second prong of the retaliation prima facie case because they did not result in an adverse employment action. The Seventh Circuit has held that to sustain a post-employment retaliation claim such as the one Hollowell now brings, a plaintiff must show some post-employment conduct that has a nexus to employment or impinges on future employment. See Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891 (7th Cir. 1996); Reed v. Shepard, 939 F.2d 484, 493 (7th Cir. 1991). Here, Turner, Talamantes, and Balsar were not prospective employers for Hollowell. Turner was a friend of Hollowell's wife who was simply doing a favor for Hollowell by performing a reference check. Talamantes was an EEOC investigator whose job was to investigate Hollowell's charges by interviewing relevant witnesses. And Balsar was an IOUE Union representative discussing Hollowell's case with IMS. None of these individuals were ever prepared to offer Hollowell a job. Accordingly, any negative information they received from IMS personnel did not affect Hollowell's employment prospects and Hollowell did not suffer an adverse employment action.
With respect to the fourth incident, where IMS did not return phone calls from Jennifer Stevens of Exterior 2000, Plaintiff cannot meet the third prong of the retaliation prima facie case. Hollowell has not submitted any evidence to show that IMS's failure to return Stevens's phone calls was in any way caused by his filing of an EEOC Charge of Discrimination. Indeed, IMS has tendered evidence showing that it was a policy of the IMS Human Resources Department not to respond to telephone messages or unsolicited written correspondence. Thus, the failure to respond to Stevens's phone calls was not a retaliatory act, but compliance with IMS's standard policy. The Court is not satisfied that Hollowell was singled out for retaliatory treatment because he had filed a Charge of Discrimination.
Without evidence that IMS personnel made negative comments about Hollowell to actual prospective employers because Hollowell filed an EEOC Charge of Discrimination, Hollowell's retaliation claim must fail.
III. Contract Claims
Hollowell's final claim is that IMS breached its duties to him under the CBA between IMS and IUOE. Specifically, Plaintiff believes his lay-off was in violation of the seniority provisions of the CBA and that he is entitled to some form of insurance under the CBA. However, in McLeod v. Arrow Marine Transport, Inc., 258 F.3d 608 (7th Cir. 2001), the Seventh Circuit stated, "An employee seeking a remedy for an alleged breach of a collective bargaining agreement must attempt to exhaust his contractual remedies under that agreement before filing suit against his union or his employer." Id. at 610. In this case, the CBA between IUOE and IMS provided specific procedures for filing grievances. Section 8.2 of the CBA provides:
Step 1: A grieved employee shall first take up his/her grievance orally with the employer, supervisor or representative. He may, if he so desires, have his/her steward appear with him. The grievance shall be orally brought to the employer's attention within three working days of the occurrence or discovery of the grievance. . . . A grievance not submitted within the time limits shall be deemed untimely and is waived.
Section 8.3 of the CBA provides: Step 2: In the event the grievance is not settled, the employee then shall put his/her grievance in writing within three working days after Step1 meeting, dated and signed along with the contract article affected and submit the grievance to the District Business Representative and he and the Business Representative shall meet with the employer's representative and attempt to settle the matter.
Assuming that the December 20, 2000 meeting served as a Step 1 grievance, that is where the matter ended. Hollowell admits he never submitted a written grievance, as required under Step 2. Instead, Hollowell attempts to explain his failure to file a grievance by stating that he relied on the advice of Hopkins, his IUOE Union representative. However, in the Seventh Circuit, "[u]nion members have an affirmative duty to educate themselves about the available internal [grievance] procedures." Hammer v. International Union, United Auto, Aerospace, and Agricultural Implement Workers of America, 178 F.3d 856, 858-59 (7th Cir. 1999). Therefore, Hollowell had a duty to know what the CBA grievance procedures were and to utilize them. Because he did not, Hollowell cannot now bring a contract claim against IMS. Summary judgment on the contract claims will be granted.
CONCLUSION
Based on the foregoing, IMS's Motion for Summary Judgment is hereby GRANTED.